State v. Manzo

• Decision Date: 23 November 1977
• Docket Number: No. 5795,5795
• Parties: , 3 Media L. Rep. 1660 STATE of Hawaii, Plaintiff-Appellee, v. Thomas MANZO, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 945

573 P.2d 945

58 Haw. 440, 3 Media L. Rep. 1660

STATE of Hawaii, Plaintiff-Appellee, v. Thomas MANZO, Defendant-Appellant.

No. 5795.

Supreme Court of Hawai'i.

Nov. 23, 1977.

Syllabus by the Court

1. When appeal is from denial of a motion to dismiss an indictment, the appellate court must affirm if appellant may constitutionally be found guilty upon any state of facts embraced by the charge.

2. Where the First Amendment is not involved, a statute may not be challenged on the ground that it might be applied unconstitutionally in circumstances not before the court.

3. A statute may be facially invalid for overbreadth when it is broad enough in its terms to suppress speech protected by the First Amendment, without the need of showing that the specific conduct before the court is protected.

4. A statute which regulates obscenity may be enforced against any offender, regardless of the nature of the material involved in the specific case, only if the definition of the proscribed material is not broader than the definition of obscenity used by the United States Supreme Court in drawing the line between protected and unprotected utterances under the First Amendment.

5. Speech which is protected by Article I, Section 3 of the Hawaii Constitution does not include matter which constitutes unprotected obscenity under the First Amendment, as defined in presently current decisions of the United States Supreme Court.

6. HRS § 712-1210(5) is construed to incorporate parts (a) and (b) of the standards announced in Miller v. California, and to limit its definition of pornographic materials or performances to the sort of representations or descriptions of specific "hard core" sexual conduct given as examples in Miller v. California, i. e., patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, and of masturbation, excretory functions, and lewd exhibition of the genitals.

7. A penal statute is void for vagueness which neither gives fair notice to a person what conduct is prohibited nor prescribes fixed standards for adjudging guilt when that person stands accused.

8. In appraising a vagueness challenge to a regulation of obscenity in light of the due process requirements of the Hawaii Constitution, the criteria are those applicable when First Amendment concerns are not present, rather than the stricter criteria which have been evolved for statutes which regulate speech.

9. A statute regulating obscenity is not void for vagueness, despite difficulty in determining whether marginal conduct is within its proscription as enacted, if it gives fair warning that the conduct which it may constitutionally regulate is subject to prosecution.

10. The notice requirement of Miller v. California may be met for all purposes by a limiting construction placed upon the statute by the court.

11. A construction of a statute which merely confines the statute to its constitutional limits does not implicate the right of the accused to receive fair notice that his acts were among those intended to be prohibited by the statute.

12. A limitation of a statute by judicial construction to affect only that part of the described conduct which the legislature constitutionally could regulate is not an invasion of legislative prerogative where there is no doubt of the legislature's intent to regulate what remains within the statutory prohibition.

Myer C. Symonds, Honolulu (Bouslog & Symonds, Honolulu, of counsel), for defendant-appellant.

Randolph R. Slaton, Deputy Pros. Atty., City and County of Honolulu, Honolulu (Lawrence S. Grean, Deputy Pros. Atty., Honolulu, on the brief), for plaintiff-appellee.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

KIDWELL, Justice.

Appellant was charged, in the district court, that he "knowing its contents and character did disseminate for monetary consideration pornographic materials, to wit, a 8mm movie film entitled "Dog Instruktio", thereby committing the offense of Promoting Pornography, in violation of Section 1214(1)(a) of the Hawaii Penal Code."

After Appellant's demand for a jury trial, the cause was transferred to the circuit court, where Appellant moved to dismiss. The circuit court denied the motion and allowed an interlocutory appeal. Appellant claims that the statute under which he was charged violates the protection of speech and the guarantee of due process contained in the First and Fourteenth Amendments of the United States Constitution and the corresponding provisions of the Hawaii State Constitution.

HRS § 712-1214 (§ 1214 of the Penal Code) provides Promoting pornography. (1) A person commits the offense of promoting pornography if, knowing its content and character, he:

(a) Disseminates for monetary consideration any pornographic material; or

(b) Produces, presents, or directs pornographic performances for monetary consideration; or

(c) Participates for monetary consideration in that portion of a performance which makes it pornographic.

(2) Promoting pornography is a misdemeanor.

Significant terms are defined in HRS § 712-1210 as follows:

Definitions of terms in this part. In this part, unless a different meaning is required:

(1) "Disseminate" means to manufacture, issue, publish, sell, lend, distribute, transmit, exhibit, or present material or to offer or agree to do the same.

(2) "Material" means any printed matter, visual representation, or sound recording, and includes but is not limited to books, magazines, motion picture films, pamphlets, newspapers, pictures, photographs, drawings, sculptures, and tape or wire recordings.

(5) "Pornographic." Any material or performance is "Pornographic" if all of the following coalesce:

(a) Considered as a whole, its predominant appeal is to prurient interest in sexual matters. In determining predominant appeal, the material or performance shall be judged with reference to ordinary adults, unless it appears from the character of the material or performance and the circumstances of its dissemination that it is designed for a particular, clearly defined audience. In that case, it shall be judged with reference to the specific audience for which it was designed.

(b) It goes substantially beyond customary limits of candor in describing or representing sexual matters. In determining whether material or a performance goes substantially beyond the customary limits of candor in describing or representing sexual matters, it shall be judged with reference to the contemporary standards of candor of ordinary adults relating to the description or representations of such matters.

(c) It is utterly without redeeming social value.

The First Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, prohibits abridgment of "the freedom of speech". Article I, Section 3 of the Hawaii State Constitution provides: "No law shall be enacted . . . abridging the freedom of speech . . . ."

The Fourteenth Amendment of the United States Constitution provides that no person shall be deprived by a state "of life, liberty or property, without due process of law." Article I, Section 4 of the Hawaii State Constitution contains an identical provision.

Appellant contends that § 1214(1)(a), with the definitions contained in § 1210, infringes these guarantees. The principal thrust of Appellant's argument is that the Hawaii Constitution is not subject to the limitations placed by the United States Supreme Court upon the federal Constitution, and should be held to provide the same freedom with respect to the dissemination of pornography as to that of nonpornographic material. He also argues that the definition of "pornographic" in § 1210 is impermissibly vague in violation of the due process guarantees of both constitutions.

Since this appeal is from a denial of a motion to dismiss, if Appellant may constitutionally be found guilty upon any state of facts embraced by the charge we must affirm. United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947). The material alleged to be pornographic is described only as an 8 mm. movie film, with a title which we do not regard as significantly defining its contents. We are thus called upon to determine the constitutionality of a penal statute upon hypothetical facts, i. e., we must engage in conjecture whether the charge embraces any state of facts under which Appellant may constitutionally be adjudged guilty of the offense charged. Appellant asks us to do more, and to determine that, notwithstanding that the actual conduct of Appellant might not be protected, this statute is facially unconstitutional and invalid because the statute could apply by its terms to conduct which lies within the protection of a constitutional provision and to which the statute cannot constitutionally be applied. In other words, we are asked to determine that the statute is overbroad.

Our analysis of Appellant's claims to constitutional protection leads us to the conclusion that neither the First Amendment nor Article I, Section 3 of the Hawaii Constitution protects the conduct charged by the complaint. We interpret Article I, Section 3 of the Hawaii Constitution as excluding obscenity from protected speech. We construe § 1210(5) to incorporate those limitations upon its definition of pornographic materials and performances which the Supreme Court has prescribed as requisite under the First Amendment. We find that the statute under which Appellant was charged, as so construed, is not facially unconstitutional for overbreadth under either the First Amendment or Article I, Section 3 of the Hawaii Constitution, and is not void for vagueness. The interlocutory order denying Appellant's motion to dismiss is accordingly affirmed.

I

We look first at the claims made by Appellant under the First Amendment's protection of free speech. To fix a point of departure, historically, we note that the ...